State v. Shannehan
22 Iowa 435
Iowa
1867
Check Treatment
Dillon, J.

1. Criminal law: evidence: effect of admitting continuance affidavit. To avoid the continuance, the State’s attorney was bound to admit “ that the witness, Dr. TIuston, would, if present, swear to the facts stated th© affidavit.” Rev., § 3013. And the statute provides that, in the event of such admission being made, “ the cause shall not be continued, but the party moving therefor shall read, as the evidence of such witness, the facts held by the court, to be sufficiently stated in the affidavit. Id.

To test the ruling complained of, it is to be taken that Dr. Huston was in court, and, as a witness, stated to the jury that the blow did not cause the death of the deceased. If he had so testified, could the State’s attorney, without laying the foundation therefor, call another witness, and show that Dr. Huston had máde statements out of court different from those made by him in court ? Clearly not. That this could be done in an ordinary case would not be claimed.

2. __ application of ordinary rule. There is no reason why the rule should not apply in the present instance. The fact that this was a criminal, and not a civil trial, would be a reason for adhering to, rather than discarding, the rule. But the same rules of evidence in this respect apply to both classes of trials. Rev., §§ 4805, 4750, 3013.

3. — statements under oath. The fact also that the outside statement was made before the coroner’s jury, makes no difference. It does not appear that this statement was made x x , under oath betore the coroner ;. and if it had thus appeared, this court has held that the ordinary rule as to the necessity of laying the proper foundation, applies to an impeachment by means of other depositions of the witness. Samuels v. Griffith, 13 Iowa, 103; Morrison v. Myers, 11 Id., 538. See, as to the reason of *438the rule and tbe extent of its application: The Queen's Case, 2 Brod. & Bing., 313; Kimball v. Davis, 19 Wend., 438, and authorities there cited; Pendleton v. Empire Co., 19 N. Y., 13, 17; State v. Puhl, 8 Iowa, 447; Glenn v. Carson, 3 G. Green, 529; 1 Greenl. Ev., §462; 2 Phil. Ev., 436, 438.

■ It was particularly prejudicial to the defendant to receive the evidence objected to, since the court denied to the defendant the right to show that his witness did not make the supposed contradictory statement imputed to him by the impeaching witness.

The judgment is reversed and the cause remanded for a new trial.

Reversed.